This collection of essays takes a fresh and wide-ranging approach to intellectual property (IP), packing a surprising amount of substance into a slim volume. The ambitiousness, diversity and range of topics discussed reflect the fragmentation and diversification of IP rights around the world, but nonetheless some common themes arise. The long-term impact of ‘modern colonial transplant of laws’ (as Susy Frankel puts it), done particularly by states which grew their economies with less-than-stringent IP protection, is explored in various essays. Another recurring topic is the C-word: China, the influence of which is felt throughout the book and not just in the China-focussed chapters. The authors also take on the uncomfortable relationships between IP, economic incentives and competition. This is grounded in the use of well-selected examples which ultimately make the book engaging and relatable. The first essay, on cognitive dissonance in the economics of patent projection, identifies some glaring deficits in the existing research into patents’ actual impact in innovation and economy growth. Keith E. Maskus goes on to offer some constructive solutions to addressing these in future discourse, with keenly perceptive and rational insight underpinning some self-confessedly ambitious ideas. In the following chapter, Ken Shao demonstrates through three fascinating case studies how innovation in Chinese companies has recently gathered pace and momentum as they strive towards perfection. A potential future where China metamorphoses from a ‘fertile land of piracy’ to a maximalist IP regime is sketched out. This is coloured by the previous discussion of developed countries increasing IP protection strength after benefitting from a weaker regime. Michel Vivant’s piece on the functions of IP protection and their legitimate ‘enclosure’ stylistically conveys a similar effect to that of a charismatic speaker, who is breathlessly excited by their topic—which is impossible to resist. Vivant adopts a functionalist approach which is bold but considered and comprehensively applied to trade marks, patents and copyright. The essay on standards and antitrust reminds the reader of the influence of China, in this case by applying the essential facilities doctrine to IP in new anti-monopoly regulations. Colangelo and Pardolesi illuminate the tensions between competition regulation and IP and interrogate the respective policies in the European Union (EU), China and USA. The authors make a compelling argument against attempting to find complementarity between IP and competition regulation, and explore the prospect of an expanded essential facilities doctrine. The iconic ‘Egg’ and ‘Tripp Trapp’ (Hauck v Stokke) chairs quite literally illustrate the chapter by Schovsbo and Riis on design law and the protection of shapes. This essay takes a thorough look at contrasting positions on shape protection, across Europe and Scandinavia, as well as how protection for shapes has changed over time. The authors identify the problems where the ‘smorgasbord’ of different options for IP protection of shapes overlap, and make astute suggestions for EU design reform. In the next essay, on ‘genericide’ of trade marks, Vincenzo Di Cataldo exposes the flaws in the current framework for determining when a trade mark has become generic. The chapter makes a persuasive case for an objective doctrine which puts consumer and end-user perception at its centre, and uses geographical indicators as a helpful comparator with trade marks. The penultimate essay presents an original and interesting discussion of the geographies of fashion, tradition and place. Johanna Gibson draws on the example of Harris Tweed which neatly captures a study of industrial history, ‘Doctor Who’ fan culture and consumption of merchandise in China. The essay underscores the importance of non-agricultural geographical indications (GIs) in fashion industries in Europe and beyond. I personally would like to read a follow-up by Gibson which revisits the same concepts explored in this essay, including traditional cultural expressions and pop culture, in light of the reception of Marvel’s recent blockbuster ‘Black Panther’, which occurs to me as encapsulating some of the same issues. The final essay, by Susy Frankel, addresses the over-incentivization of IP rights, painting a saturated picture of the IP landscape where IP incentives fail to correspond to innovation. This essay draws together the notions of incentives, competition, functions as well as the significant influence of Chinese law on the rest of the world. As a whole, this is a very impressive collection of essays which feels relevant and comprehensive. The book deals with the spectrum of IP rights, drawing useful comparisons between them and keeping the material fresh and varied. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of Intellectual Property Law & Practice – Oxford University Press
Published: Apr 27, 2018
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